June 28, 2008
Historic new head of Florida courts talking criminal justice reform
How Appealing links here to all the news coverage of the swearing in of Florida's historic new Chief Justice. Especially interesting among the articles is this local piece headlined, "New Chief Justice Quince becomes first black woman to head branch of state in Florida; She vows to continue push for reform of criminal-justice system." Here are excerpts:
Chief Justice Peggy Quince, the first black woman to head any branch of Florida government, used her swearing in ceremony to call for a new commission to fight a widespread perception of unequal treatment in the courts. "No one should come out of this court system feeling that they were treated unfairly," Quince said. "You may lose, but you should not feel that you were treated unfairly."
Quince vowed to continue a push by her predecessor to reform a criminal-justice system that spends $250 million a year housing defendants too mentally ill to stand trial. "Our jails and prisons cannot continue to be the psychiatric hospitals that no longer exist," she said.
Intriguingly, at two Southern states (Georgia and Florida) now have female African-American Chief Justices, while the U.S. Supreme Court has yet to have a single female minority ever serve as a Justice. Here is hoping that the next President, whomever he may be, will give serious thought to this telling reality.
Former SG Ted Olson suggests Heller could impact broad prohibitions on felon gun rights
As regular readers know, I have long been suggesting that a broad ruling in the Heller Second Amendment case could and should impact the broad federal prohibition on felons possessing guns (see old posts here and here and here and here). I am now very pleased to learn, based on this new article in the New York Sun, that former Solicitor General Ted Olson seems to agree with my legal analysis.
The NY Sun article, headlined "Supreme Court Decision May Permit Felons To Own Guns," is the first major artilce I have seen covering this important angle on post-Heller legal realities. Here are excerpts from an effective article:
[L]ittle attention has been paid to the effect that the court's decision could have on regulations defining which groups of people can be excluded from gun ownership. "The Court might decide there are some classes of felons that ought to be treated differently from other classes of felons," a former solicitor general, Theodore Olson, said in an interview on Thursday about the prospect that the Supreme Court may eventually permit felons to own guns.
Crimes ranging from murder to writing a hot check can count as felonies. The felon-in-possession law applies to people convicted of state crimes as well as federal crimes. At the end of 2001 there were 5.6 million adult felons living in this country who either had been to prison or were still behind bars, according to Justice Department figures. But the number of felons is actually much higher because many felons are sentenced to probation and never do any time....
In interviews, several legal experts say that lower court judges should interpret the Supreme Court's decision in Heller to permit non-violent felons to own weapons. "Why not? I can't see why they shouldn't have gun rights if they don't have a record of violent crime," a lawyer who financed the Heller case, Robert Levy, said. "If the nature of their crime has nothing to do with the commission of violence than it's a pretty strange punishment that would deprive ex-felons of the ability to defend themselves."...
Among gun rights lawyers there is little enthusiasm for trying to arm felons, a cause that is unlikely to attract much popular support. "I don't sense any great interest in overturning the ban on felons-in-possession," a co-counsel to Mr. Levy who argued the Heller case before the Supreme Court, Alan Gura, said in an interview. "I don't see that as the next battleground."
Regardless, the issue will arise as defense lawyers challenge the Justice Department's routine prosecution of felons who are caught with guns.... The Justice Department is expected to vigorously defend its felon-in-possession law. Prosecutors like the law because it makes for some of the easiest criminal cases to prove: All that's needed is proof of a felony and proof of gun possession....
Justice Scalia, in writing for the majority in the Heller case, sought to foreclose these very kinds of challenges. The opinion suggests that only "law-abiding, responsible citizens" enjoy Second Amendment rights. "Nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill," Justice Scalia wrote. Yet, in a dissent, Justice Stevens suggested that the majority wasn't being true to its own logic. "Even felons (and presumably irresponsible citizens as well)" can invoke the Bill of Rights, Justice Stevens wrote.
Some related posts (all of which, except the first, were written before Heller was handed down):
- More thoughts about the scope of Second Amendment rights
- Get ready for a Second Amendment rumble, defense attorneys
Noticing the religious right's prison awakening and a new politics
This New York Times piece, headlined "Unlikely Allies on a Former Wedge Issue," discussus the political activism of some evangelical Christians concerning prison reform. Here are snippets from an effective piece:
During his years as the attorney general of Virginia, Mark Earley periodically visited his state’s prisons. In a very real way, he was looking at the human consequences of his career as a public servant, the men and women jailed for fixed, lengthy sentences without parole under laws Mr. Earley had endorsed. Not surprisingly, many inmates pulled back a few steps when introduced to their visitor.
Eventually, though, Mr. Earley took their measure. What he discovered, he recalled in a recent interview, were “not the Ted Bundys, the mass murderers” but “kids who reminded me of my kids, serving 5, 10, 15 years for drugs and going out and being rearrested again.”
In those moments of recognition, Mr. Earley began a startling transformation from a tough-on-crime crusader to an advocate for prison reform and a prominent critic of the very type of drug laws he had formerly promoted. Since leaving the attorney’s general’s position in 2001, Mr. Earley has taken his new cause to a position as president of Prison Fellowship Ministries, a national organization based in the Washington suburbs.
Motivated both by religious faith and a secular analysis of public policy, Mr. Earley and the fellowship’s vice president, Pat Nolan, a former California legislator, have regularly testified before Congress, written op-ed essays and given speeches on behalf of efforts to roll back mandatory-minimum sentencing, equalize penalties for crack and powder cocaine, and offer nonviolent offenders treatment rather than incarceration, among other initiatives....
“What’s distinct is that we’re in an ‘Aha!’ moment now,” Mr. Earley, 53, said in a phone conversation. “The crime issue used to be such a driving wedge between liberals and conservatives, Democrats and Republicans, and now it’s not. In the presidential campaign this year, when have you heard crime as a wedge issue? It’s a common-ground issue, and no one would have envisioned that in the ’70s and ’80s.”...
“What the Prison Fellowship brings to the discussion is a different approach, a different perspective, that says this is not a liberal-versus-conservative debate,” said Marc Mauer, the executive director of the Sentencing Project, a group based in Washington, D.C. “This is about what is effective policy and compassionate policy.”...
What brought Mr. Earley and Mr. Nolan into the debate was a mix of factors. Before their arrival, Prison Fellowship Ministries — founded by Charles Colson after he served a prison sentence for his role in the Watergate scandal — had already staked out reformist positions on prison rape and prisoner rehabilitation. Mr. Earley referred to his political evolution as “an attitude-adjustment by God.” Mr. Nolan, 58, experienced his own road-to-Damascus moment while serving a two-year prison sentence in the mid-1990s on a corruption charge. “I went into prison believing in God, and I came out knowing him,” he said. “I understood how much he loved us, even in a dark place.”
Some related posts:
- Interesting Ohio report on correctional faith-based initiatives
- The virtues of faith-based prisons
- Interesting examination of faith-based prison movement
- Religion, sentencing and corrections
- Is faith the best thing to happen to prisons since ... the faithful started prisons?
- More evidence of a new sentencing reform politics
- Alabama looks to God squad to do its public safety job
June 27, 2008
Second Circuit affirms federal death sentence
As detailed in this AP story, the Second Circuit today affirmed the federal death sentence of Donald Fell. The full opinion, which can be accessed here, runs far too long for me to consume on a late Friday afternoon. Folks still energized after a very long week are encouraged to note anything notable in the Fell opinion via comments.
Lawyer Scruggs gets smoked with five-year max prison term
As detailed in this local report, "Dickie Scruggs received the maximum 5 years in prison in $250,000 in fines for a crime Judge Neal D. Biggers Jr. called 'reprehensible'." Here are more details:
Scruggs faced a maximum sentence of five years but argued that he should be sentenced to 30 months. He pleaded guilty in March to conspiring in 2007 to bribe Circuit Court Judge Henry L. Lackey, who cooperated with federal investigators.
Biggers entered the courtroom at 10 a.m. sharp and it was soon obvious from what he said about the findings in the pre-sentencing report, that the judge would hand down a stiff sentence. He said, "There is no question in the court's mind that Mr. Scruggs, Mr. Richard Scruggs, was a leader and a planner (in the conspiracy). He has said he came into the scheme late. Regardless, he was the leader, he was the money man."
In fact, Biggers said Scruggs had entered into the scheme so easily that it made him wonder whether Scruggs had done such a thing before and indeed evidence indicates that he may have....
Biggers also questioned why Scruggs would be paying legal settlement fees to non-lawyers. He did not mention any names, but it was clear that he was referring to the elusive Delta businessman P.L. Blake, who expected, over the course of a settlement Scruggs reached with tobacco companies, to receive $50 million in fees.
DC Circuit affirms (but questions fairness of) acquitted conduct enhancement
The DC Circuit this morning in US v. Settles, No. 06-3090 (DC Cir. June 27, 2008) (available here), affirms a within-guideline sentence that included an acquitted conduct sentencing enhancement under the guidelines. Though rejecting Fifth and Sixth Amendment challenges, the panel has this to say about the apparent unfairness of such sentence enhancements:
To be sure, we understand why defendants find it unfair for district courts to rely on acquitted conduct when imposing a sentence; and we know that defendants find it unfair even when acquitted conduct is used only to calculate an advisory Guidelines range because most district judges still give significant weight to the advisory Guidelines when imposing a sentence. At his sentencing, Settles himself cogently explained the point directly to the court: “I just feel as though, you know, that that’s not right. That I should get punished for something that the jury and my peers, they found me not guilty.” May 19 Tr. at 29. Many judges and commentators have similarly argued that using acquitted conduct to increase a defendant’s sentence undermines respect for the law and the jury system....
For those reasons, Congress or the Sentencing Commission certainly could conclude as a policy matter that sentencing courts may not rely on acquitted conduct. But under binding precedent, the Constitution does not prohibit a sentencing court from relying on acquitted conduct.
That said, even though district judges are not required to discount acquitted conduct, the Booker-Rita-Kimbrough-Gall line of cases may allow district judges to discount acquitted conduct in particular cases – that is, to vary downward from the advisory Guidelines range when the district judges do not find the use of acquitted conduct appropriate.... Because the District Court here chose not to vary below the advisory Guidelines range, however, we need not and do not decide that question.
Notably, the defendant in Settles does not appear to have challenged his sentence on reasonableness grounds. In light of Gall's statement about the importance of "promot[ing]e the perception of fair sentencing," a reasonableness challenge should have more juice than the standard (and frequently rejected) constitutional complaints.
Should and will sex offenders support new constitutional challenges to gun registration?
In this post I suggested that, after Heller, DC and other localities might try to regulate guns through the kinds of registration requirements many states have to regulate sex offenders. However, as detailed in this website detailing a new Second Amendment lawsuit against Chicago's gun regulations, registration requirements for guns that are much less onerous than sex offender registration requirements are already coming under constitutional attack. Here is a snippet from the press release about the new suit:
Following Thursday’s (5-4) ruling by the U.S. Supreme Court in the case of District of Columbia v. Heller that the Second Amendment protects an individual civil right to keep and bear arms, and that a municipal gun ban violates that right, the Second Amendment Foundation (SAF) and the Illinois State Rifle Association (ISRA) filed a federal lawsuit (complaint) challenging the City of Chicago’s long-standing handgun ban....
Attorney Alan Gura, who argued the District of Columbia challenge before the high court, and Chicago area attorney David G. Sigale, represent the plaintiffs. “Our goal,” Gura said “is to require state and local officials to respect our Second Amendment right to keep and bear arms. Chicago’s handgun ban, and some of its gun registration requirements, are clearly unconstitutional.”...
Under the gun law currently in place, firearms must be re-registered annually. “Each time,” Gura said, “a tax is imposed, forms must be filled out, photographs submitted. A person who owns more than one gun will find herself or himself constantly in the process of registering each gun as it comes due for expiration. If registration is to be required, once is enough.”
I wonder if any groups concerned about the onerous registration requirements imposed on sex offenders will get behind the efforts by gun groups to attack onerous registration requirements imposed on gun owners. If (when?) gun owner succeed in getting severe registration requirements declared constitutionally unreasonable, then sex offenders may have a much easier time attacking the constitutionality of their registration requirements.
Is Obama's reaction to SCOTUS rulings an example of new or old politics?
I have not blogged the political impact of the Supreme Court's work in Kennedy and Heller, in part because I want to focus on theory and dotrine before turning to politics. Nevertheless, this effective Time article, headlined "Obama's Supreme Move to the Center," captures the intriguing developing political story surrounding the Supreme Court's recent work. Here is how the piece starts:
When the Supreme Court issues rulings on hot-button issues like gun control and the death penalty in the middle of a presidential campaign, Republicans could be excused for thinking they'll have the perfect opportunity to paint their Democratic opponent as an out-of-touch social liberal. But while Barack Obama may be ranked as one of the Senate's most liberal members, his reactions to this week's controversial court decisions showed yet again how he is carefully moving to the center ahead of the fall campaign.
On Wednesday, after the Supreme Court ruled that the death penalty was unconstitutional in cases of child rape, Obama surprised some observers by siding with the hardline minority of Justices Scalia, Thomas, Roberts and Alito. At a press conference after the decision, Obama said, "I think that the rape of a small child, six or eight years old, is a heinous crime and if a state makes a decision that under narrow, limited, well-defined circumstances the death penalty is at least potentially applicable, that that does not violate our Constitution."
Then Thursday, after Justice Scalia released his majority opinion knocking down the city of Washington's ban on handguns, Obama said in a statement, "I have always believed that the Second Amendment protects the right of individuals to bear arms, but I also identify with the need for crime-ravaged communities to save their children from the violence that plagues our streets through common-sense, effective safety measures. The Supreme Court has now endorsed that view."
June 26, 2008
The best post-Heller test case for felon self-defense gun rights?
Last month I highlighted in this post what would appear to be a very hard case in the wake of Heller's protection of an individual Second Amendment right in service to the natural right of self-defense. The case, US v. Alston, No. 06-1559 (3d Cir. May 20, 2008) (available here), affirms a mandatory 15-year sentence in a felon-in-possession case.
As detailed in this prior post, it was undisputed that former felon Robert Alston carried a firearm fo a short period due to "a legitimate fear for life or limb" and he testify against local thugs who thereafter threatened Alston and his daughter. Despite these undisputed circumstances, the Third Circuit affirms the district court's decision that Alston should not be allowed to even argue the defense of justification to a jury when being prosecuted for felon-in-possession. As I suggested before, I have a hard time seeing how those who genuinely ascribe to the logic and rhetoric of the majority's opinion in Heller can readily justify placing Mr. Alston in federal prison for 15 years simply because he carried a gun for self-defense for a short period when indisputbly facing "a legitimate fear for life or limb."
Because of Alston's criminal record, perhaps he is not the poster child for challenging felon-in-possesion laws through the newly established Second Amendment individual right. But the facts of his case are remarkable, and all he seeks is a right to argue self-defense necessity to a jury. And if this is not a fitting and hard post-Heller test case, perhaps readers can suggest others.
A quote for all constitutional seasons
Here is a notable quote from a prominent activist troubled by a recent Supreme Court ruling that overturns a piece of crime-fighting legislation:
The [Court's recent] decision ... will most likely embolden criminal defendants, and ideological extremists, to file new legal attacks... [T]hose attacks can, and must, be successfully resisted in the interest of public safety.
Though I could readily imagine this quote from a legislator troubled by the Kennedy ruling preventing states from enforcing capital child rape laws, in fact it comes from the head of the Brady Campaign complaining about Heller. Ah, the curse of rights.
Seeking a feminist perspective: is the Kennedy opinion sexist?
I am disappointed that folks at Feminist Law Professors and other prominent bloggers concerned about mysogny have not yet provided a gendered perspective on the Supreme Court's Kennedy ruling. Rape is a gendered crime, and the Supreme Court's 1977 Coker opinion incorporates lots of language and themes that reflect the antiquated gendered view of the nine old men who were on the Court at that time. (When I teach these topics, the women in my class are uniformly offended by some of the language in Coker that is quite dismissive of the harms suffered by rape victims.)
Justice Kennedy's opinion for the Court in Kennedy uses language that is much more sensitive to the harms of rape. Nevertheless, the ruling still essential embraces the fundamentals of Coker. And, better language notwithstanding, the ruling in Kennedy asserts that an evolved moral society does not view even the worst forms of rape to be as tragic as many killings, and it concludes that states are constitutionally misguided when seeking to treat the most horrible rapes as seriously as some horrible killings.
Disappointingly, Justice Ginsburg, the only woman on the Court and one with a long record of feminist concern, did not follow-up her seemingly gendered questions at oral argument with an opinion in Kennedy. Consequently, I am eager to know whether my own feminist leanings are misguided when I worry that the Kennedy ruling reflects a kind of implict or unconscious sexism.
Some related recent posts on Kennedy:
Dealing with dangerousness: can, will, should DC regulate guns like states regulate sex offenders?
As the Heller majority opinion recognizes, handguns can be used for lots of good purposes, but also may be dangerous and can cause great harm in a community. The same might be said for released sex offenders: they can do lots of good things, but also may be dangerous and can cause great harm in a community. Though the parallels are imperfect, it does suggest that DC and other jurisdictions interested in gun control might try now to regulate guns the way many jurisdictions now regulate sex offenders.
Specifically, sex offenders are typically required to register where they live, to notify authorities when they move, and to update their registration every few months. In addition, many states prohibit sex offenders from living in the vicinity of schools and other areas where kids congregate. And the failure to comply with these regulations can lead to criminal liability under state and federal laws.
So, can, will and should DC take the same approach to handguns and their owners? Can and should DC pass new legislation requiring those seeking handgun licenses to register where they live (and where in their homes guns are kept), to notify authorities when they move, and to update registrations every few months? Can and should DC prohibit gun owners from living near schools or other areas where kids congregate? Should there be public websites where concerned parents can find if any registered gun owners are living nearby?
Though perhaps enforcing strict registration rules with severe criminal liability might go too far after Heller, the majority opinion hints that enforcing these regulations through fines and gun forfeitures could withstand constitutional scrutiny. Indeed, DC might be able turn this into a money maker by demanding that gun owners (like car owners) pay a sizable fee for maintaining the gun registry and can charge very large fines for the failure of a gun owner to maintain his registration.
In short, to the extent that a lot of government regulation of sex offenders (not to mention alcohol and tobacco) are permitted in the name of public safety, will it really be that hard for DC and other jurisdictions to develop more refined (and potentially more intrusive) gun control regulations (and taxes) after Heller?
Certain post-Heller uncertainty: lots of lower court Second Amendment litigation
As regular readers know, I have predicted lots of lower court litigation would follow Heller if the Supreme Court recognized an enforceable individual Second Amendment right. Of course, that is what Heller recognizes, and all the broad language highlighted in this post provides plenty of fodder for would-be litigants eager to safeguard their gun rights. (As I explained here, the Hayes case already taken up by the Justices is just one example of a case in which a serious new commitment to enforceable individual Second Amendment rights could and should complicate debates over statutory interpretation and the application of existing federal gun laws.)
In comments here and here on prior Heller posts today, commentors have started to spotlight laws that now seem vulnerable to constitutional attack on Second Amendment grounds. In an effort to bring a bit more order to this discussion, I would be grateful if readers would in the comments to this post provide specific cites to specific federal (or state) criminal or sentencing laws that can and should immediately be constitutionally questioned on Second Amendment grounds in light of Heller. Thanks!
Will (and can) "outraged" politicians really do anything about Kennedy?
As detailed in this AP article, headlined "Unbowed, politicians vow to execute child rapists," and this CBN News article, headlined "Politicians Outraged by Child Rape Ruling," many elected officials are not too pleased with the Supreme Court's work in Kennedy declaring unconstitutional all capital child rape laws. Here are the basics from the CBN story:
Dissent from the high court's ruling reverberated around the country from Louisiana — the state where the case originated — to various levels of government. "I think the rationale for this ruling was faulty — was absurd," Louisiana's Governor Bobby Jindal said.
There was even outrage on the campaign trail, where both contenders for the White House condemned the justices' decision. And some states promised to keep looking for ways to hand down the death sentence for child rapists.
Though I can see the basis for political outrage, I do not see what states can do to work around this ruling, at least not until they can develop lots of pertinent evidence that there is a national consensus in favor of making child rapists death eligible. And it is not even clear that such evidence would readily lead the Kennedy five to change course given their "independent judgment" against all such laws.
Here's an idea for the politicians who are really annoyed and really want to do something: propose and pass a legislative resolution saying that they strongly believe that the evolved moral norms of their constitutents would support the possibility of capital child rape for horrific, extreme cases involving multiple victims and repeat offenders. I think that such a general resolution (which would not change and state laws and should be hard to vote against) could get lots of support in lots of state legislatures. And if a majority of legislatures were to pass such a resolution, perhaps states other that Louisiana could try to get their (more narrowly tailored) capital child-rape laws upheld.
Some related posts:
Justice Scalia sells out felon gun rights, but on what basis exactly?
Here are sets of quotes from the majority opinion in Heller that I have a hard time adding up:
We start therefore with a strong presumption that the Second Amendment right is exercised individually and belongs to all Americans. (Slip op. at 10, emphasis added.)
It was plainly the understanding in the post-Civil War Congress that the Second Amendment protected an individual right to use arms for self-defense. (Slip op. at 44, emphasis added.)
As the quotations earlier in this opinion demonstrate, the inherent right of self-defense has been central to the Second Amendment right. The [DC] handgun ban amounts to a prohibition of an entire class of “arms” that is overwhelmingly chosen by American society for that lawful purpose. The prohibition extends, moreover, to the home, where the need for defense of self, family, and property is most acute. Under any of the standards of scrutiny that we have applied to enumerated constitutional rights, banning from the home “the most preferred firearm in the nation to ‘keep’ and use for protection of one’s home and family,” 478 F. 3d, at 400, would fail constitutional muster. (Slip op. at 56-57, emphasis added.)
A broader point about the laws that JUSTICE BREYER cites: All of them punished the discharge (or loading) of guns with a small fine and forfeiture of the weapon (or in a few cases a very brief stay in the local jail), not with significant criminal penalties.... [W]e do not think that a law imposing a 5-shilling fine and forfeiture of the gun would have prevented a person in the founding era from using a gun to protect himself or his family from violence, or that if he did so the law would be enforced against him. The District law, by contrast, far from imposing a minor fine, threatens citizens with a year in prison (five years for a second violation) for even obtaining a gun in the first place. (Slip op. at 61-62, emphasis added.)
Summing up, it would seem that the majority holds that, pursuant to the Second Amendment, "all Americans" have an "individual right to use arms for self-defense." And, the Second Amendment would be most problematically transgressed when this right is severely restricted in the "home, where the need for defense of self, family, and property is most acute" through the threat of years in prison rathen than just a minor fine.
As regular readers know, I think all these assertions add up to making constitutionally questionable the threat of severe sentences on felons in possession of firearms. After all, felons are Americans with a need to protect themselves and their families through keeping guns in their home. And yet, all felons (even non-violent ones like Lewis Libby and Martha Stewart) face the threat of 10 years in federal prison for just possessing a firearm.
Nevertheless, the majority opinion boldly and baldly asserts that "nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill." (Slip op. at 54.)
Really? How can that (unjustified and unsupported) dicta be squared with all that has been said before? To his credit, Justice Stevens properly asserts in this context that felons are not categorically excluded from exercising First and Fourth Amendment rights and thus the majoiry "offers no way to harmonize its conflicting pronouncements." Time and litigation will tell if holdings or dicta end up dominating the application of the Second Amendment in future cases.
Supreme Court declares Second Amendment protects individual right
The much-anticipated Supreme Court ruling on the Second Amendment in Heller has been released, and it appears to be the expected 5-4 split decision with Justice Scalia writing the majority opinion for the Court. Here is the early report from SCOTUSblog:
The Court has released the opinion in District of Columbia v. Heller (07-290), on whether the District’s firearms regulations — which bar the possession of handguns and require shotguns and rifles to be kept disassembled or under trigger lock — violate the Second Amendment. The ruling below, which struck down the provisions in question, is affirmed. Justice Scalia wrote the opinion. Justice Breyer dissented, joined by Justices Stevens, Souter and Ginsburg.
As regular readers know and as explained in prior posts, I think this ruling could have a profound impact on federal criminal law and sentencing, though the exact terms of the majority opinion will determine how significant this impact will be.
- More thoughts about the scope of Second Amendment rights
- Get ready for a Second Amendment rumble, defense attorneys
UPDATE: The full opinion in Heller runs 157 pages, and everyone can read along with me at this link. I will quote passages in a future post that could be important for the federal criminal justice system.
The Sentencing Project reponds to prison-crime commentary
This morning I received via e-mail this notable notice from The Sentencing Project:
In a recent syndicated column ("More Prisons, Less Crime"), commentator George Will argues that the world record incarceration rate in the United States has produced safer streets and has been beneficial in particular to African Americans, who are disproportionately victims of crime. Will's selective use of data and limited vision provide an inaccurate portrayal of current criminal justice policy and its effects.
In a briefing paper, The Sentencing Project refutes Will's argument on prison racial disparities, federal crack cocaine sentencing and the impact of incarceration on crime. Do Prisons Equal Less Crime? provides an assessment of some of the key arguments raised in the Will column.
Here is one snippet from The Sentencing Project's effective briefing paper:
While differential crime offending is one contributing factor to racial disparities in prison, a wealth of research documents that it only explains a portion of the patterns in imprisonment. A comprehensive review of research in the field conducted for the National Institute of Justice concluded that "race and ethnicity do play an important role in contemporary sentencing decisions. Black and Hispanic offenders -- and particularly those who are young, male, or unemployed -- are more likely than their white counterparts to be sentenced to prison; in some jurisdictions, they also receive longer sentences...than do similarly situated white offenders."
Culture of life trumps democracy and state experimentation in Kennedy
I have now read carefully both opinions in Kennedy, and can share a few jurisprudential observations and provide my summary take-away:
1. I was surprised (and somewhat disappointed) by how categorical and "traditional" the Court's Eighth Amendment work was in Kennedy. Rather than a nuanced outcome like we got in Baze, the majority set out a bright-line rule to eliminate any real possibility for the death penalty for non-homicide cases. And rather than thoughtfully explore any new approaches to the Eighth Amendment in this context, we get the tired (and silly) state-counting "moral consensus" debate and the now-standard arguments about the Court's independent judgment.
2. Though both Justice Kennedy and Justice Alito make their arguments effectively, neither puts forward any jurisprudentially provocative ideas (and the silence from all the other Justices is deafening). Given the mess that is the Court's capital Eighth Amendment jurisprudence and the distinctive gender issues raised in this setting, I was hoping someone (like the new Chief or Justice Ginsburg) would provide some fresh jurisprudential meat for us academics. (I cannot help speculating what might have been in Kennedy if it had not been argued until the start of OT 2008, rather than at the end of OT 2007.)
3. The notion that death is different, both as a punishment and as a crime, finds expression in the outcome and the entire tenor of the majority opinion. Fans of a "culture of life" should really like what the majority is doing and saying.
4. This telling sentence at the end of the majority's work captures the essence of its attitude toward these matters:
In most cases justice is not better served by terminating the life of the perpetrator rather than confining him and preserving the possibility that he and the system will find ways to allow him to understand the enormity of his offense.
Even if one accepts this bold and bald assertion about how to best serve justice in "most cases," I still think a strong structural argument can be made for allowing democratically elected state legislatures and executive officials to experiment with serving justice through the use of the death penalty in at least some extreme child rape cases (particular as involves repeat offenders with multiple victims).
That all said, the symbolic importance of Kennedy should not overshadow its practical insignificance. Nearly all awful child rapists would serve extended state prison terms no matter how these jurisprudential debates were resolved, and the really consequential constitutional issues concerning sex offenders are still percolating in lower courts.
June 25, 2008
Complaints about Georgia's efforts to keep sex offenders away from church
This interesting article in the Altanta Journal-Constitution discusses a new litigation front in Georgia efforts to keep sex offenders from holy activities. Here are a few excerpts:
A Georgia law banning sex offenders from volunteer work at churches should be struck down because it "criminalizes fundamental religious activities," a court motion filed Tuesday says. The motion is the latest legal assault on the controversial state sex-offender registry law, one of the toughest in the nation. A new provision says no registered sex offender shall be employed by or volunteer at a church.
This makes it a crime for sex offenders to sing in adult choirs, prepare for revivals or cook meals in a church kitchen, said the motion, which seeks a court order halting enforcement of the provision before it becomes law July 1.
It was filed in U.S. District Court in Atlanta as part of ongoing litigation that seeks to declare the law unconstitutional. Sarah Geraghty, a lawyer with the Southern Center for Human Rights, said punishing registered sex offenders for volunteer work at a place of worship will do more harm than good. "Certain people on the sex-offender registry should not work with children in a church setting or elsewhere," said Geraghty, one of the lawyers who filed the court motion. "With this law, the state of Georgia is driving people on the registry from the faith communities and depriving them of the rehabilitative influence of the church."
So, the Supreme Court says you cannot send child rapists to death row, and the Georgia Legislature is trying to keep them from getting closer to God in a different way. Talk about being damned.
Some first-cut reactions to Justice Kennedy's work in Kennedy
I am finally getting a chance to read the Kennedy case in full and general reaction will be coming in future posts. But, as I work through the ruling, and I cannot help wondering aloud about some head-scratching passages in the majority's opinion prohibiting states for making child rape eligible for the sentence of death. Specifically, I am especially perplexed by the sentence in bold from this paragraph:
Evolving standards of decency must embrace and express respect for the dignity of the person, and the punishment of criminals must conform to that rule. See Trop, supra, at 100 (plurality opinion). As we shall discuss, punishment is justified under one or more of three principal rationales: rehabilitation, deterrence, and retribution. See Harmelin v. Michigan, 501 U. S. 957, 999 (1991) (KENNEDY, J., concurring in part and concurring in judgment); see also Part IV–B, infra. It is the last of these, retribution, that most often can contradict the law’s own ends. This is of particular concern when the Court interprets the meaning of the Eighth Amendment in capital cases. When the law punishes by death, it risks its own sudden descent into brutality, transgressing the constitutional commitment to decency and restraint.
I genuinely have no idea what this bolded sentence means, and whether it could have meaning/impact in settings beyond capital cases when the Court is applying the Eighth Amendment. Can anyone help me understand what the heck Justice Kennedy and the others are saying here?